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TN Appellate Court Reverses Lower Court’s Decision in Moorcroft v. Stuart

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As explored in previous blogs, Tennessee courts almost always gives due deference to the biological parent(s) of a child in custody cases where the best interest analysis has been applied. However, how do Tennessee courts treat adjudicated grandparent visitation, specifically those ordered form outside states?

The facts of Moorcroft v. Stuart are Patrick Moorcroft (Father) and Natalie Moorcroft (Mother) and their Children lived in Bowling Green, Kentucky until they moved to Whitehouse, Tennessee in the fall of 2011. Mother and Grandmother, both attorneys, worked at Grandmother’s law firm for several years. Their personal and business relationship began to deteriorate so Mother left Grandmother’s firm. After leaving the law firm, the relationship between Mother and Grandmother became even more toxic, so much so that Mother eventually forbade Grandmother from contacting the Children.

Grandmother, in an effort to resume her relationship with her grandchildren, filed a petition for grandparent visitation with a Kentucky court. Mother responded by filing a motion to dismiss the Kentucky visitation proceedings, alleging that she, Father, and the Children had moved to Tennessee one day prior to the filing of Grandmother’s petition. Mother also argued that the Kentucky court lacked personal jurisdiction over Father because he had not yet to have been served. The Kentucky court denied Mother’s motion awarding grandparent visitation to Grandmother.

Mother and Father subsequently filed a petition for legal separation in Tennessee claiming they both been “bona fide residents of Tennessee for more than six months.” Father sought approval of a legal separation agreement and a temporary parenting plan by the Sumner County Circuit Court which was granted. However, the Grandmother moved to intervene in the Tennessee Circuit Court decision seeking to enforce the Kentucky grandparent visitation order.

Grandmother alleged that Mother and Father had entered into a sham separation proceeding in an attempt to undermine visitation rights granted to her by the Circuit Court of Warren County, Kentucky. Grandmother also claimed that the parents had attempted to deceive the Tennessee circuit court by failing to provide it with detailed information regarding the Kentucky proceedings as required by Tennessee Code Annotated 36-4-106 and 36-6- 224. The Tennessee court allowed Grandmother to intervene in the Tennessee case.

Grandmother then sought to register the Kentucky grandparent visitation order in the Tennessee case so the Tennessee court could enforce it. Mother objected on the grounds that the Tennessee Uniform Child Custody Jurisdiction and Enforcement Act (TUCCJEA) did not permit the registration of foreign grandparent visitation orders. Mother also argued that the TUCCJEA violated her rights under Article I, Section 8 of the Tennessee Constitution because it allowed the registration and enforcement of a foreign grandparent visitation order without a showing of substantial harm to the Children.

The Sumner County Circuit Court granted Grandmother’s request that registration of the Kentucky grandparent visitation order be enforced. Mother and Father subsequently appealed the trial court’s decision arguing that the TUCCJEA does not support the registration and enforcement of foreign grandparent visitation orders.

The Court of Appeals of Tennessee at Nashville offered the following reasoning in its conclusion to reverse the trial court’s decision:

Article I, Section 8 of the Tennessee Constitution requires that a finding of substantial endangerment be made before a non-parent can overcome the presumption of superior parental rights. Application of the Tennessee UCCJEA registration provision to grandparent visitation presents serious constitutional concerns. Tennessee Code § 36-6-229 does not provide adequate constitutional protection to our citizens—it does not require a court to find a substantial risk of harm to the child prior to registration and enforcement of a foreign grandparent visitation order. It also does not require the foreign court to have made such a finding. The Grandparent Visitation Statute, however, has been revised to explicitly require that a Tennessee court determine whether there is a risk of substantial harm to the child. Only then may the court proceed to consider whether grandparent visitation is in the child’s best interest.

Because registration of a foreign grandparent visitation order that does not comply with our State’s constitutional guarantees would present serious concerns, we conclude that the Tennessee UCCJEA registration provision does not apply to foreign grandparent visitation orders.

If a court in another state has granted grandparent visitation against your wishes, you should seek the services of an experienced family law attorney. Contact Jim Widrig or any of the attorneys at Widrig Law, PLLC to schedule a consultation. Our phone number is 615-417-7800.

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